PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Pledge Agreement") dated as of April 14, 1999
is made by Xxxxxxx X. Xxxxxxxx (the "Pledgor"), an individual residing at 0
Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000, in favor of MIM Corporation, a Delaware
corporation (the "Secured Party"), with an office at 000 Xxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H :
WHEREAS, Pledgor is the record and beneficial owner of 1,500,000 shares of
the common stock, par value $.0001 per share (the "Common Stock") of the Secured
Party; and
WHEREAS, simultaneously with the execution and delivery of this Pledge
Agreement, the Pledgor is executing and delivering to the Secured Party a
Commercial Term Promissory Note dated of even date herewith, in the original
principal amount of $1,700,000.00 (such Note, as the same may be amended,
supplemented or otherwise modified from time to time, and any note or instrument
given in or evidencing a substitution, refinancing, refunding, replacement,
extension or exchange of or for such Note, being collectively referred to herein
as the "Promissory Note") evidencing a commercial $1,700,000.00 term loan (the
"Loan"); and
WHEREAS, to induce the Pledgee to make the Loan, the Pledgor promised to
pledge the aforesaid 1,500,000 shares as security for the payment of the
Promissory Note.
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgor hereby agrees with the Secured Party as follows:
1. Defined Terms. The following terms shall have the following meanings as
used herein:
"Business Day": any day other than Saturday or Sunday or other day in which
banks are authorized to be closed in the State of New York.
"Code": the Uniform Commercial Code as from time to time in effect in the
State of New York.
"Collateral": all of Pledgor's right, title and interest in, to or under
any of the following:
(i) all of the stock described in Schedule I attached hereto and hereby
made a part hereof;
(ii) all dividends (cash or non-cash) and all other distributed stock
rights, subscription rights, warrants, interest, cash, instruments,
new securities, security entitlements and all other property to which
the Pledgor now or hereafter becomes entitled by reason of its
interest in any or all of the foregoing;
(iii) all substitutions, additions, replacements, rollovers, splits,
products and accessions for, of and/or to any of the foregoing;
(iv) all cash and non-cash proceeds of all of the foregoing;
(v) any and all stock certificates or other instruments or other writings
evidencing any stock or other securities referred to in clauses (i)
through (iii) above; and
(vi) any and all other property (tangible or intangible) identified herein
as additional collateral.
"Default": any event which with the giving of notice or passage of time, or
both, would become an Event of Default.
"Event of Default": the occurrence of any of the following (whether or not
an event or circumstance is mentioned once or more than once):
(i) any "Event of Default" as defined in the Promissory Note;
(ii) any representation or warranty made by the Pledgor hereunder proves to
have been false or misleading in any material respect when given;
(iii) any default by the Pledgor in the observance or performance of
Sections 5(b), 5(e) or 5(g) hereof; or
(iv) any default by the Pledgor in the observance or performance of any
other covenant or agreement set forth herein and such default shall
continue unremedied for a period of thirty (30) calendar days after
the earlier to occur of (i) written notice of such default shall have
been given to the Pledgor by the Secured Party of such default or (ii)
the Pledgor becoming actually aware of such default.
"Lien": any security interest, mortgage, lien, pledge, charge, title
retention agreement, hypothecation, levy, execution, seizure, attachment,
garnishment, voting agreement, assignment or other encumbrance.
"Loan to Collateral Value Ratio": at any particular time, the ratio of (a)
the sum of (i) the then outstanding principal amount of the Promissory Note
plus (ii) the then accrued and unpaid interest under the Promissory Note to
(b) the fair market value (to be determined by the Secured Party on the
basis of the then applicable quoted price on the stock exchange on which
the capital stock of the Secured Party is traded, or, if such
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quotation(s) is/are not available for any reason, on a basis to be
determined by the Secured Party in its good faith discretion) of the then
remaining Specified Pledged Stock owned by the Pledgor and for which
certificates (and accompanying duly executed stock powers in blank) have
been delivered to and are then in the possession of the Secured Party and
in which the Secured Party has a first priority secured interest.
"Obligations": all indebtedness, liabilities, covenants and duties of, all
terms and conditions to be observed by, and all other obligations of the
Pledgor under the Promissory Note and this Pledge Agreement, whether now
existing or hereafter arising, including without limitation all principal,
interest, and reasonable costs and expenses (including without limitation
reasonable attorneys fees) under the Promissory Note.
"Person": any individual, corporation, partnership, trust or unincorporated
organization, a government or any agency or political subdivision thereof,
or other entity.
"Pledge Agreement": this Pledge Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Proceeds": proceeds of every kind, nature and description and in whatever
form (whether cash or non-cash) including, but not limited to, any and all
dividends or other income from the Specified Pledged Stock or other
collateral and collections thereon or distributions with respect thereto.
"Specified Pledged Stock": as defined in Schedule I hereto.
2. Grant of Security Interest. The Pledgor hereby delivers to the Secured
Party all the Specified Pledged Stock and hereby grants to the Secured Party a
first priority security interest in the Collateral, as collateral security for
the full and prompt payment, performance and observance when due (whether due at
the stated maturity, by demand, acceleration or otherwise) of the Obligations.
3. Stock Powers. Pledgor shall cause any and all certificates or other
instruments or other writings at any time representing or evidencing any of the
Collateral to be immediately delivered to the Secured Party along with undated
stock powers (or other appropriate indorsements) covering such certificates,
instruments or other writings duly executed in blank by the Pledgor with, if the
Secured Party so requests, signature guaranteed.
4. Representations and Warranties. The Pledgor represents and warrants
that:
(a) The Pledgor has not created any restrictions on transferability (other
than those created under this Agreement) with respect to the Collateral;
(b) the Pledgor is the legal and beneficial owner of, and has good and
marketable title to, the Specified Pledged Stock listed, free of any and all
Liens or options in favor of, or claims of, any other Person, except for the
Lien created by this Pledge Agreement;
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(c) The security interest granted pursuant to this Pledge Agreement will
constitute a valid, perfected first priority security interest in the
Collateral, enforceable as such against the Pledgor and all other parties; and
(d) This Pledge Agreement is the legal, valid and binding obligation of the
Pledgor, enforceable against Pledgor in accordance with its terms, and the
execution, delivery and performance of this Pledge Agreement by the Pledgor does
not and will not violate any applicable law, or any agreement, instrument or
order applicable to the Pledgor or any of Pledgor's property; and
(e) The Pledgor's residence is located at 0 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxx
00000, and the Pledgor's principal place of business is located at 000
Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000.
5. Covenants. The Pledgor covenants and agrees with the Secured Party that,
from and after the date of this Pledge Agreement until the Obligations are paid
in full:
(a) If the Pledgor shall, now or hereafter, as a result of Pledgor's
ownership of any of the Specified Pledged Stock or the other Collateral, become
entitled to receive or shall receive any shares of stock (including, without
limitation, any shares of capital stock representing a stock dividend or a
distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), or any
other distributed stock rights, subscription rights, warrants, interest, cash
(other than those cash dividends which the Pledgor is permitted to receive under
Section 6), instruments, new securities, security entitlements or any other
property, or any substitutions of, additions to, replacements for, rollovers,
splits, products and/or accessions for, of and/or to, or otherwise with respect
to, any Collateral, the Pledgor shall accept any and all of the same as the
agent of the Secured Party, hold the same in trust for the Secured Party and
deliver (to the extent same are certificated or otherwise evidenced by a
writing) any and all certificates, other instruments or other writings
evidencing same forthwith to the Secured Party in the exact form received, duly
endorsed by the Pledgor to the Secured Party, if required, together with an
undated stock power(s) covering same duly executed in blank by the Pledgor and
with, if the Secured Party so requests, signature guaranteed, any and all of the
foregoing to be held by the Secured Party as additional collateral security for
the Obligations. Any sums paid upon or in respect of the Specified Pledged Stock
(or any other Collateral) upon the liquidation or dissolution of the Secured
Party (including without limitation any liquidating dividend) shall be paid over
to the Secured Party to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital shall be
made on or in respect of the Specified Pledged Stock (or any other Collateral)
or any property (cash or non-cash) shall be distributed upon or with respect to
the Specified Pledged Stock (or any other Collateral) pursuant to the
recapitalization or reclassification of the capital of the Secured Party or
pursuant to the reorganization thereof, the property so distributed shall be
delivered to the Secured Party to be held by it hereunder as additional
collateral security for the Obligations. If any sums of money or property so
paid or distributed in respect of the Specified Pledged Stock (or any other
Collateral) shall be received by the Pledgor, the Pledgor shall, until such
money or property is paid or delivered to the Secured Party, hold such money or
property in trust for the Secured Party, segregated from other funds of the
Pledgor, as additional collateral security for the Obligations.
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(b) Without the prior written consent of the Secured Party, the Pledgor
will not directly or indirectly create, incur or permit to exist any Lien or
option in favor of, or any claim of any Person with respect to, any of the
Collateral or any interest therein, except for the Lien provided for by this
Pledge Agreement and any other Liens in favor of the Secured Party. The Pledgor
will defend the right, title and interest of the Secured Party in and to the
Collateral against the claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request of the
Secured Party, and at the sole expense of the Pledgor, the Pledgor will promptly
and duly execute and/or deliver such Uniform Commercial Code financing
statements and such further instruments and other documents and take such
further actions as the Secured Party may request to perfect its security
interest in any and all Collateral, or may otherwise reasonably request for the
purposes of obtaining or preserving the full benefits of this Pledge Agreement
and of any and all of the rights, remedies and powers herein granted. If any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any promissory note, other instrument or chattel paper, such
note, instrument or chattel paper shall be immediately delivered to the Secured
Party, duly endorsed in a manner satisfactory to the Secured Party, to be held
as additional collateral pursuant to this Pledge Agreement.
(d) The Pledgor agrees to pay, and to save the Secured Party harmless from,
any and all liabilities with respect to, or resulting from any delay in paying,
any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Collateral or in connection
with any of the transactions contemplated by this Pledge Agreement or the
exercise by the Secured Party of any of its rights, remedies or powers
hereunder.
(e) Subject to the proviso set forth in this sentence, the Pledgor shall
not sell, transfer, assign or otherwise dispose of the Collateral; provided,
however, that the Secured Party hereby agrees that Secured Party shall, at the
written request of the Pledgor, release from time to time up to an aggregate of
300,000 shares (as adjusted, if applicable, for any stock split or reverse stock
split, combination or the like) of Common Stock from the Lien of this Pledge
Agreement (and the Pledgor shall, after such release, have the right to retain
and/or sell or otherwise dispose of the released Collateral) if all of the
following conditions are satisfied:
(i) no Event of Default or Default has occurred and is continuing
immediately prior to, nor shall any Event of Default or Default result
from, such release;
(ii) the Loan to Collateral Value Ratio during the entire ninety (90) day
period immediately prior to such release, and the Loan to Collateral
Value Ratio immediately after such release, is no greater than 1.0 to
2.0; and
(iii) the Pledgor has given to the Secured Party prior written notice of
Pledgor's intent to request any such release and such prior written
notice is given no less than 10 and no more than 45 Business Days
prior to the proposed date of release.
(f) [RESERVED]
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(g) In the event Pledgor shall move his residence or principal place of
business, he shall (i) attempt to give the Secured Party prior written notice
thereof and (ii) in any event give to the Secured Party, within 10 calendar days
after such move, written notice of such move.
6. Voting Rights; Dividends. Unless an Event of Default shall have occurred
and be continuing, the Pledgor shall be permitted to receive non-liquidating
cash dividends paid on the Collateral and to exercise all voting and corporate
rights with respect to the applicable Collateral, provided, however, that
Pledgor covenants to the Secured Party that no vote shall be cast or corporate
right exercised or other action taken by Pledgor which, in the Secured Party's
reasonable judgment, would impair the Collateral or which would be inconsistent
with or result in any violation of any provision of any agreement or instrument
relating to any Obligation, including without limitation the Promissory Note,
this Pledge Agreement, or any other financing document contemplated by the
Promissory Note. The Secured Party, if an Event of Default shall have occurred
or be continuing, shall have the right to receive and hold as additional
collateral any dividends or other distributions on the Specified Pledged Stock
or other Collateral and, in the event that the Pledgor shall be delivered or
otherwise have received (or be entitled to receive) any such dividends or other
distributions, Pledgor shall hold same in trust for, and immediately turn over
same to, the Secured Party who may hold same as part of the Collateral
hereunder; provided, that, the Secured Party shall also have the right (whether
or not an Event of Default then exists) to receive and hold as Collateral any
liquidating dividend.
7. Rights of the Secured Party. (a) If any Event of Default shall occur and
be continuing, (A) any and all shares of the Specified Pledged Stock and any
other applicable Collateral may, at the Secured Party's option, be registered in
the name of the Secured Party or its nominee, and/or (B) the Secured Party or
its nominee may exercise (i) all voting, corporate and any other rights
pertaining to any and all Collateral, whether at any meeting of shareholders of
the Secured Party or otherwise and/or (ii) any and all rights of conversion,
exchange, subscription and any other rights, privileges or options pertaining to
any and all Collateral as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any and all of the
Specified Pledged Stock (and any other applicable Collateral) upon the merger,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate structure of the Secured Party, or upon the exercise by the
Pledgor or the Secured Party of any right, privilege or option pertaining to
such shares of the Specified Pledged Stock (and any other applicable
Collateral), and in connection therewith, the right to deposit and deliver any
and all of the Specified Pledged Stock (and any other applicable Collateral)
with any committee, depository, transfer agent, registrar or other designated
agency upon such terms and conditions as it may determine), all without
liability to the Pledgor, but the Secured Party shall have no duty to the
Pledgor to exercise any of the foregoing rights, privileges or options and shall
not be responsible for any failure to do so or delay in so doing.
(b) The rights of the Secured Party under this Agreement shall not be
conditioned or contingent upon the pursuit by the Secured Party of any right or
remedy against any other Person or against the Collateral or any other security
or collateral. The Secured Party shall have no obligation or duty (and shall not
be liable for any failure) to demand, collect, apply or realize upon all or any
part of the Collateral or for any delay in doing so, to collect or to sell or
otherwise dispose of any
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Collateral (whether upon the request of the Pledgor or any other Person or
otherwise and whether or not an Event of Default has occurred or the value of
the Collateral has (or may) increase or decrease), to advise the Pledgor of any
actual or anticipated changes in the value of the Collateral, to act as an
investment advisor or insurer of any of the Collateral, to preserve rights
against prior parties, to protect Collateral (except, with respect to Collateral
in its possession, as specifically set forth in Section 11 below), to take any
other action whatsoever with regard to the Collateral or any part thereof, or to
seek payment from any particular source, and any such obligation or duty is
hereby waived to the fullest extent permitted by applicable law.
8. Remedies. If an Event of Default shall occur and be continuing, the
Secured Party may exercise, in addition to all other rights, remedies and powers
granted in this Pledge Agreement or in any other instrument or agreement, all
rights, remedies, and powers whether as a secured party or otherwise, under the
Code or other applicable law. Without limiting the generality of the foregoing,
the Secured Party, without the need for demand of payment or other performance
or other demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon the Pledgor or
any other Person (all of which demands, defenses, advertisements and notices are
hereby waived), may at any and all times demand, xxx for, collect, receive,
issue entitlement orders (without Pledgor's consent), and/or exercise all
options and other rights under or with respect to, and/or appropriate and/or
realize upon or otherwise deal with, any or all of the Collateral, and/or make
any settlement or compromise which the Secured Party reasonably deems desirable
with respect to any or all Collateral, and/or sell, assign, give an option or
options to purchase or otherwise dispose of and deliver any and all of the
Collateral (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at any
exchange, broker's board or office of the Secured Party or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk. The Secured Party shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Collateral so sold (and in so
purchasing the Secured Party may apply towards the purchase price the unpaid
amount of any Obligations) . The Secured Party shall have the right to apply any
Proceeds from time to time held by it and the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred in respect
thereof or incidental to the care or safekeeping by the Secured Party (or any
agent or representative of the Secured Party) of any of the Collateral or in any
way relating to the Collateral or the rights, remedies or powers of the Secured
Party hereunder, including, without limitation, reasonable attorneys' fees and
disbursements of counsel to the Secured Party, to the payment of any and all of
the Obligations (whether matured or unmatured), in such order and manner as the
Secured Party may elect, and only after such application and after the payment
by the Secured Party of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code, need the Secured
Party account for the surplus, if any, to the Pledgor. To the extent permitted
by applicable law, the Pledgor waives all claims, damages and demands it may
acquire against the Secured Party arising out of the exercise by the Secured
Party of any rights, remedies or powers hereunder except to the extent that such
claims, damages or demands arise from the gross negligence or willful misconduct
of the Secured Party. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, ten (10) calendar days prior written notice
of the time and place of any public sale or of the time after which
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any private sale or other intended disposition is to be made shall be deemed
reasonable. The Pledgor shall remain fully liable for any deficiency if the
proceeds of any sale or other disposition or any application of the Collateral
are insufficient to pay the Obligations and the costs and expenses of the
Secured Party. Nothing contained in this Agreement shall be interpreted or
construed so as to require the Secured Party to realize upon the Collateral
prior to attempting to collect any of the Obligations, and the Secured Party may
exercise all of its various rights, remedies and powers in such order and manner
as Secured Party, in its discretion, shall deem advisable.
9. Private Sales. (a) The Pledgor recognizes that the Secured Party may be
unable to effect a public sale of any or all the Specified Pledged Stock (or
other applicable Collateral), by reason of certain prohibitions contained in the
Securities Act and applicable state securities laws or otherwise (including
without limitation the impracticability of such a public sale due to the value
of the Specified Pledged Stock or otherwise), and may be compelled to resort to
one or more private sales thereof to a restricted group of purchasers which will
be obliged to agree, among other things, to acquire such securities for their
own account for investment and not with a view to the distribution or resale
thereof. The Pledgor acknowledges and agrees that any such private sale may
result in prices and other terms less favorable than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner. The
Secured Party shall be under no obligation to delay a sale of any of the
Specified Pledged Stock (or other Collateral) for the period of time necessary
to permit the registration of such securities for public sale under the
Securities Act, or under applicable state securities laws.
(b) The Pledgor further agrees to use Pledgor's best efforts to do or cause
to be done all such other acts as may be necessary to make any sale or sales of
all or any portion of the Specified Pledged Stock (or other Collateral) pursuant
to this Pledge Agreement valid and binding and in compliance with any and all
other applicable requirements of law. The Pledgor further agrees that a breach
of any of the covenants contained in this Section 9 will cause irreparable
injury to the Secured Party, that the Secured Party has no adequate remedy at
law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 9 shall be specifically enforceable against
the Pledgor, and the Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred.
10. Certain Waivers. The Pledgor waives (i) diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Pledgor with respect to the Obligations or any other obligations or liabilities
of the Pledgor to the Secured Party and (ii) the benefit of any marshalling
doctrine with respect to the Secured Party's exercise of its rights, remedies or
powers hereunder or otherwise.
11. Limitation on Duties Regarding Collateral. The Secured Party's sole
duty with respect to the custody, safekeeping and physical preservation and
protection of the Collateral in its possession, under Section 9-207 of the Code
or otherwise, shall be to deal with it in the same manner as the Secured Party
deals with similar securities and property for its own account. Neither the
Secured Party nor any of its officers, employees or agents shall be (i) liable
or responsible for any
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failure to demand, exercise any options or rights with respect to, notify the
Pledgor of any conversions, splits, calls or similar matter, collect or realize
upon any of the Collateral or for any delay in doing so or for any change in the
value of any Collateral (whether before or after an Event of Default) or (ii)
under any obligation to sell or otherwise dispose of any Collateral, whether
upon the request of the Pledgor or otherwise.
12. Powers Coupled with an Interest. All authorizations and agencies herein
contained with respect to the Collateral are irrevocable and powers coupled with
an interest.
13. Severability. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof in such jurisdiction, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
14. Paragraph Headings. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and shall not affect the
construction hereof or be taken into consideration in the interpretation hereof.
15. No Waiver; Cumulative Remedies; Waivers and Amendments.
(a) The Secured Party shall not by any act (except by a written instrument
executed and delivered by the Secured Party in accordance with subparagraph (b)
below), delay, indulgence, omission or otherwise be deemed to have waived any
right, remedy or power hereunder or to have acquiesced in any Event of Default.
No failure to exercise, nor any delay in exercising, on the part of the Secured
Party, any right, remedy or power shall operate as a waiver thereof. No single
or partial exercise of any right, remedy or power hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, remedy or
power. A waiver by the Secured Party of any right, remedy or power hereunder on
any one occasion shall not be construed as a bar to any right, remedy or power
which the Secured Party would otherwise have on any future occasion. The rights,
remedies and powers of the Secured Party herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights,
remedies or powers provided by applicable law or any other agreement, instrument
or other document. Secured Party may exercise any or all such rights, remedies
and powers at any time(s) in any order which Secured Party chooses.
(b) None of the terms or provisions of this Pledge Agreement may be
amended, waived, supplemented or otherwise modified except by a written
instrument executed and delivered by the party sought to be charged.
16. Successors and Assigns. This Pledge Agreement shall be binding upon the
successors, assigns, heirs and representatives of the Pledgor and shall inure to
the benefit of the Secured Party and its successors and assigns. Pledgor shall
not, without the prior written consent of the Secured Party, assign any of his
rights or obligations hereunder.
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17. Notices. Notices by one party to the other shall be in writing and may
be given by certified mail, by overnight mail sent by Federal Express or other
nationally recognized overnight courier, or delivery by hand, addressed to such
party at the address set forth in the first paragraph hereof and shall be deemed
given (a) in the case of certified mail, four (4) Business Days after being
deposited in the mail, first class postage pre-paid, (b) in the case of
overnight mail, one (1) Business Day after being sent by overnight mail, and (c)
in the case of delivery by hand, when delivered. Either party may change its
address for delivery of notices by written notice to the other in the manner set
forth in this Section 17.
18. Costs and Expenses. The Pledgor hereby agrees to pay or reimburse the
Secured Party, on demand, for all reasonable costs and expenses (including
without limitation all reasonable attorneys' fees and disbursements and the
reasonable fees and disbursements of all other experts including without
limitation all accountants and appraisers) incurred by the Secured Party in
connection with preserving, amending, defending, protecting, exercising or
enforcing this Pledge Agreement or any of its rights, remedies and powers
hereunder, or attempting to do any of the foregoing, including without
limitation all reasonable costs and expenses incurred in connection with the
exercise of any right, remedy or power with respect to the Collateral.
19. Integration. This Pledge Agreement represents the entire agreement of
the Pledgor and the Secured Party with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Secured Party relative to the subject matter hereof not expressly set forth or
referred to herein.
20. Gender. Whenever the context herein so requires, the neuter gender
includes the masculine or feminine, and the singular number includes the plural,
and vice-versa.
21. Counterparts. This Pledge Agreement may be executed by facsimile and in
one or more counterparts, each of which shall be considered an original but all
of which together shall be deemed one and the same instrument.
22. Governing Law; Jury Trial Waiver.
(a) THIS PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PLEDGOR
UNDER THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS THEREUNDER.
(b) THE PLEDGOR HEREBY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY AND
THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY KIND, ARISING UNDER OR OUT
OF, OR OTHERWISE RELATED TO OR CONNECTED WITH, THIS PROMISSORY NOTE AND/OR THIS
PLEDGE AGREEMENT.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Pledge
Agreement as of the day and year first above written.
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WITNESS:
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxxx, Pledgor
-------------------------- ------------------------------
Xxxxxxx X. Xxxxxxxx, Pledgor
ACCEPTED:
MIM CORPORATION
By /s/ Xxxxx X. Xxxxxx
-------------------------
Its President
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SCHEDULE I
1,500,000 shares of the Common Stock of the Secured Party, par value $.0001 per
share issued to the Pledgor and evidenced by stock certificate numbers 5897
(collectively, the "Specified Pledged Stock").
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